Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-04997-MHP

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SCOTT N. SCHOOLS (SCSBN 9990) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MICHAEL T. PYLE (CSBN 172954) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7322 FAX: (415) 436-6748 Attorneys for Defendant Office of Management and Budget Deborah A. Sivas (CSBN 135446) Leah J. Russin (CSBN 225336) Noah Long (Certified Law Student) ENVIRONMENTAL LAW CLINIC MILLS LEGAL CLINIC Stanford Law School Crown Quadrangle 559 Nathan Abbot Way Stanford, CA 94305-8610 Telephone: (650) 723-0325 Facsimile: (650) 723-4426 Justin Augustine (CSBN 235561) CENTER FOR BIOLOGICAL DIVERSITY 1095 Market Street, Suite 511 San Francisco, CA 94103 Phone: (415) 436-9682 Facsimile: (415) 436-9683 Attorneys for Plaintiff Center for Biological Diversity

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CENTER FOR BIOLOGICAL DIVERSITY, a non-profit organization, Plaintiff, v. THE OFFICE OF MANAGEMENT AND BUDGET, ) ) ) ) ) ) ) ) ) ) ) No. C 07-4997 MHP

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Date: January 7, 2008 Time: 4:00 p.m.

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Plaintiff, the Center for Biological Diversity ("CBD" or "Center" or "Plaintiff"), and defendant, the Office of Management and Budget ("OMB" or "Defendant"), by and through their undersigned counsel, hereby submit the following Joint Case Management Conference Statement pursuant to Civil Local Rule 16-9: 1. Jurisdiction and Service: This is an action arising under the Freedom of Information Act,

5 U.S.C. § 552 ("FOIA"), over which this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. The parties agree that personal jurisdiction, venue, and service are not at issue. 2. Facts: Plaintiff CBD: Defendant OMB denied CBD's fee waiver request related to its FOIA request for documents. The Center had requested documents relating to the development of the final rule setting average fuel economy standards for light trucks for model years 2008-2011 (71 Fed. Reg. 17566-17679). The Center requested this information to shed light on the federal government's rationale for promulgating emission standards for light trucks that do not achieve "maximum feasible average fuel economy" as required by law. 49 U.S.C. § 32902(a). OMB was closely involved with the Department of Transportation's ("DOT") promulgation of the light truck final rule, especially in regard to the economic analysis that was conducted. The public at large, including state governments and environmental groups such as the Center, has an interest in access to documents related to the rulemaking. The Center intends to disseminate the information it gleans from the requested documents to its many members as well as the public at large, and to use the information to support its continued campaign against global warming. The Center sent similar FOIA requests to DOT and the National Highway Traffic Safety Administration ("NHTSA"). NHTSA and DOT ultimately granted the Center's fee waiver requests, but OMB denied it. The Center appealed the denial to no avail. Defendant OMB: OMB serves an advisory and deliberative oversight role as a component agency within the Executive Office of the President. The Office of Information and Regulatory Affairs ("OIRA") was established as an entity within OMB by Congress in the 1980 Paperwork Reduction Act. OIRA designates and reviews significant regulations under Presidential Executive Order 12866 (1993). Under Executive Order 12866, OIRA consults with
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federal agencies and reviews drafts of significant regulations and regulatory analyses concerning a federal regulation's potential effects on society. In that capacity, OMB consulted with the DOT as part of the DOT's rulemaking process that culminated in DOT's issuance of a final rule on April 6, 2006 regarding fuel emission standards for light trucks. OMB received from CBD a FOIA request dated August 29, 2006 seeking "all documents relating to the development of the Final Rule" including "communications among staff and with others that were created during the development of the Final Rule and Proposed Rule." In its letters to CBD thereafter OMB explained that it had determined that the request was overly broad and OMB repeatedly invited CBD to narrow the scope of the request or advise it of the information of greatest interest to CBD, invitations that CBD declined. In a letter dated June 12, 2007 OMB detailed the reasons for its denial of CBD's fee waiver request, a copy of which is attached as Exhibit 3 to OMB's Answer. OMB explained in its five-page letter the basis for its determination that CBD's request for a fee waiver did not meet the statutory and regulatory requirement that "disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government." 5 U.S.C. § 552(a)(4)(A)(iii); 5 C.F.R. § 1303.70 (OMB's FOIA regulations). The letter asked CBD to make an advance payment of $3,000; CBD filed this suit rather than make the advance payment. As a result, OMB has not begun to process CBD's FOIA request. OMB does, however, from its experience in other litigation, have a basis for its view that most of the documents at issue in this case have either previously been made publicly available or would properly be withheld by OMB based on one or more of the FOIA exemptions. 3. Legal Issues: Plaintiff CBD: OMB violated FOIA by denying the Center's request for a fee waiver. FOIA provides for fee waivers when the information sought "is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). Further, OMB's failure to provide all responsive documents violates 5 U.S.C. § 552(a). Defendant OMB: OMB denies that it has violated any provision in FOIA. OMB
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respectfully submits that the first legal issues in this case is whether or not OMB was required to give CBD a fee waiver. After that issue is resolved the legal issue will be whether or not OMB is required to produce any documents to CBD. Intertwined in that second issue will be OMB's assertion that most of the documents at issue in this case have either previously been made publicly available or would properly be withheld by OMB based on one or more of the FOIA exemptions, particularly the deliberative process privilege. 4. Motions: The parties anticipate filing cross-motions for summary judgment on the issue

of whether or not OMB was required to grant CBD a fee waiver. After the fee waiver issue has been resolved the parties anticipate filing cross-motions for summary judgment on the issue of whether OMB is required to produce any documents to CBD pursuant to the FOIA request at issue. At this time the parties do not anticipate any other motions. 5. Amendment of Pleadings: The parties believe it is unlikely that any amendments to the

pleadings will be necessary in this case, but they request that the Court set a deadline for amendment of pleadings approximately three weeks after the ruling on the motion(s) for summary adjudication of the fee waiver issue. 6. Evidence Preservation: The parties have taken affirmative steps to preserve documents

and evidence related to this action. 7. Disclosures: The parties do not believe initial disclosures are either appropriate or

necessary in this case since they expect it to be resolved by motion practice based on the existing administrative record. 8. Discovery: The parties do not believe that any discovery is either appropriate or necessary

in this case since they expect it to be resolved by motion practice based on the existing administrative record. 9. 10. Class Actions: Not applicable. Related Cases: OMB filed an Administrative motion to relate this case to People of the

State of California v. EPA et al., Case No. 07-2055 JSW, which motion was denied by the Court. OMB respectfully notes for the Court that it has produced a Vaughn index in the State of California action regarding documents withheld by OMB on various grounds and that would
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appear to fall within the scope of CBD's FOIA request at issue in this case. Motions for summary judgment are pending before Judge White with regard to the documents listed on OMB's Vaughn index. OMB further respectfully notes for the Court that it prevailed in substantial part in a case brought by the State of California involving the Proposed Rule (70 Fed Reg. 51414-51466) for fuel emission standards for light trucks. Judgement was entered in that case on June 13, 2007 following cross-motions for summary judgment. That case is People of the State of California v. OMB et al., 06-2654 SC. OMB respectfully submits that Judge Conti has already ruled on the propriety of OMB's withholding of certain documents regarding the Proposed Rule. 11. Relief: Plaintiff CBD: CBD respectfully requests that this Court: 1. Declare that OMB has violated FOIA by failing to provide all records responsive to the Center's August 29, 2006 FOIA request; 2. Declare that OMB has violated FOIA by unlawfully denying a request for a fee waiver in the Center's August 29, 2006 FOIA request; 3. Order OMB to immediately provide the Center with copies of all requested information at no cost within twenty days; 4. Grant the Center such other injunctive and declaratory relief as this Court deems just and proper; 5. Retain jurisdiction over this case to ensure compliance with this Court's decree; and 6. Award the Center its reasonable attorneys fees, costs and expenses incurred in pursuing this action. Defendant OMB: Defendant OMB seeks dismissal of this action and the assessment of costs. 12. Settlement and ADR: The parties disagree about whether or not an ADR process would

be appropriate in this case. The parties each believe that important principles are at stake in this litigation that may be difficult to resolve through an ADR process, but OMB has been willing to mediate the fee waiver portion of this case and the related issue of the scope of CBD's FOIA
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request. The parties filed a Notice of Need for ADR Phone Conference, which has been scheduled for January 4, 2008 at 11:30 a.m. 13. Consent to Magistrate Judge for All Purposes: The parties do not consent to have this

matter heard by a magistrate judge for all purposes. 14. 15. 16. Other References: Neither party requests any reference. Narrowing of Issues: None at this time. Expedited Schedule: The parties believe that this case will proceed without discovery or

initial disclosures and will be resolved through motion practice on the existing administrative record. 17. Scheduling: The parties request that the Court schedule a hearing date for the motion(s)

for summary adjudication of the fee waiver issue and that it schedule a further status conference after the fee waiver issue has been resolved. CBD anticipates filing its motion for summary adjudication on the fee waiver issue one week after the Case Management Conference and believes any cross motion should be filed the same day. OMB will not be able to file any cross motion a week after the Case Management Conference due to its counsel's existing obligations in other cases; OMB submits that it should be allowed to bring a cross motion for summary adjudication at the time it files its opposition to CBD's motion. 18. Trial: The parties believe that this case will be resolved through motion practice on the

existing administrative record and that no trial will be necessary. The parties thus submit that the Court should defer setting a trial date in this matter and request that the Court hold a status conference to select a trial date at such time as the Court determine that one or more issues need to be tried. The parties agree that any trial in this matter would be a bench trial. 19. Disclosure of Non-party Interested Entities or Persons: CBD filed its certification of

interested entities or persons pursuant to Civil L.R 3-16 on September 27, 2007 and certified that // // // //
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it had no interest to report. Civil L.R. 3-16 does not apply to OMB by the terms of that rule since OMB is a federal agency.

Dated: December 31, 2007 Respectfully submitted, SCOTT N. SCHOOLS United States Attorney By: /s/ MICHAEL T. PYLE Assistant United States Attorney Attorney for Defendant OMB

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_______/s/_________ DEBORAH A. SIVAS Attorneys for Plaintiff Center for Biological Diversity

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